Equality and Non-Discrimination Under International Law : Volume II

Présentation de l'éditeur : "The principles of equality and non-discrimination lie at the heart of international human rights law. They are the only human rights explicitly included in the UN Charter and they appear at the beginning of virtually every major human rights instrument. This volume contains selected works by leading authors on the subject of equality and non-discrimination under international law. The selections are grouped into four sections. The first presents essays that explore theoretical concepts of equality and non-discrimination. The next addresses the development of international legal standards on the subject. The third presents articles analyzing how those standards have been interpreted and applied by UN and regional human rights bodies, and the last contains works on what measures besides legal action States are to take to in order to achieve equality and non-discrimination." Cover Half Title Title Page Copyright Page Contents Acknowledgements Series Preface Introduction PART I: CONCEPTS OF EQUALITY AND NON-DISCRIMINATION 1 Equality 1. THE PHILOSOPHICAL FOUNDATIONS OF EQUALITY 2. EQUALITY AND NON-DISCRIMINATION CONCEPTS IN HUMAN RIGHTS LAW 2.1 Equality as consistent treatment 2.2 Equality of opportunity 2.3 Equality of outcomes 2.4 Transformative equality 3. EQUALITY AS A STRUCTURAL PRINCIPLE OF INTERNATIONAL HUMAN RIGHTS LAW 3.1 Equality as a preambular objective 3.2 Equality serving an implicit descriptive function 3.3 Equality codification in the substantive articles of human rights treaties 4. THE SCOPE AND INTERPRETATION OF THE PRINCIPLE OF EQUALITY IN CONTEMPORARY INTERNATIONAL HUMAN RIGHTS LAW 4.1 The definition and scope of discrimination and equal treatment 4.2 Permitted measures to accelerate and achieve def acto equality 5. A RIGHT TO EQUALITY IN INTERNATIONAL HUMAN RIGHTS LAW? 6. CONCLUDING REMARKS FURTHER READING 2 Equality and Nondiscrimination Equality and Nondiscrimination as Fundamental Human Rights Religion Humanitarian Movements The UN Charter International Customary Law The History of the Principal Articles Positive and Negative Statement of the Same Principle Equality An Independent Right Equality before the Law and Equal Protection of the Law Equal Enjoyment of Enumerated Rights Nondiscrimination Discrimination versus Distinction Affirmative Action Discrimination by Private Individuals Distinctions between Citizens and Aliens Nondiscrimination in the Matter of Political Rights Nondiscrimination in Religious Rights and Practices Nondiscrimination in Education Discrimination against Persons Born Out of Wedlock The Rights of Noncitizens Principles of Equality and Nondiscrimination m the Human Rights Committee Conclusion 3 Equality and Non-Discrimination SUMMARY 1 INTRODUCTION 2 THE MEANING OF EQUALITY AND NON-DISCRIMINATION 2.1 FORMAL EQUALITY 2.2 SUBSTANTIVE EQUALITY 3 EQUALITY AND NON-DISCRIMINATION IN INTERNATIONAL LAW 3.1 SOURCES 3.2 SCOPE: SUBORDINATE AND AUTONOMOUS NORMS 3.3 PROHIBITED GROUNDS OF DISTINCTION 4 DIRECT AND INDIRECT DISCRIMINATION 4.1 DIRECT DISCRIMINATION 4.2 INDIRECT DISCRIMINATION 4.3 DISCRIMINATORY INTENTION 5 JUSTIFIED AND UNJUSTIFIED DISTINCTIONS 5.1 THE JUSTIFICATION TEST 5.2 STANDARD OF REVIEW 5.3 EVIDENCE AND PROOF 6 POSITIVE ACTION 7 CONCLUSION FURTHER READING USEFUL WEBSITES 4 The Principle of Equality or Non-Discrimination in International Law INTRODUCTION (1) Structural Dimensions (a) Autonomous or Subordinate (b) Open-Ended or Self-Contained (2) Discriminatory Intention (3) Drawing the Line Between Justified and Unjustified Distinctions (a) Identical Treatment (b) Legitimacy of Ends and Proportionality of Means to Ends ( c) International Suspect Classifications (4) AfTrrmative Action (a) "Special Measures of Protection" (i) Relationship between Non-Discrimination and "Special Measures of Protection" (b) Are Either "Special Measures" or Positive State Action Mandatory? (i) Special Measures (ii) Positive State Action CONCLUSION 5 Non-Discrimination and Equality I. INTRODUCTION II. THE CONCEPTS OF NON-DISCRIMINATION AND EQUALITY III. EQUALITY IN THE COVENANT A The Text of the Covenant B The Approach of the Committee IV. ARTICLE 2(2): NON-DISCRIMINATION A Differential Treatment B Purpose or Effect C Grounds upon which Discrimination is Prohibited D The Scope of the Non-Discrimination Provision V. STATE OBLIGATIONS A Immediate or Progressive Implementation? B The Type of Action Required C Affirmative and Protective Action D Private Discrimination VI. CONCLUSION PART II: DEVELOPMENT OF INTERNATIONAL LEGAL STANDARDS 6 Colonies, Minorities, and Women's Rights 3.1 The Communist Push for Nondiscrimination 3.2 The Problem of the Colonies 3.3 Race, Color, National Origin, and Language Race and Color National Origin Language 3.4 Political Opinion, Property, and Birth Political or Other Opinion Property, Birth, or Other Status 3.5 The Womens Lobby and Womens Rights Notes 7 The Racial Convention PRELIMINARY STEPS ADOPTION BY THE GENERAL ASSEMBLY THE STRUCTURE OF THE CONVENTION RACIAL DISCRIMINATION AS SOCIAL PATHOLOGY THE HAND OF PROVIDENCE 8 Becoming Human: The Origins and Development of Women's Human Rights I. INTRODUCTION II. EXECUTIVE SUMMARY Ill. THE ORIGINS: DEFINING THE ISSUES IV. THE DRIVE FOR EDUCATION AND INDEPENDENCE V. WOLLSTONECRAFT AND THE RIGHTS OF WOMEN VI. MARRIAGE AND CHILDREN VII. THE CONTRIBUTION OF NINETEENTH-CENTURY WOMEN WRITERS VIII. ORGANIZING FOR POLITICAL ACTION—FROM ANTI-SLAVERY TO WOMEN'S RIGHTS IX. ORGANIZING INTERNATIONALLY X. BIRTH CONTROL, FAMILY PLANNING, AND WOMEN'S HEALTH XI. THE UNITED NATIONS AND ITS COMMISSION ON THE STATUS OF WOMEN XII. A DECLARATION ON ELIMINATING DISCRIMINATION AGAINST WOMEN XIII. THE WORLD WOMEN'S CONFERENCES XIV. FROM DECLARATION TO CONVENTION TO WOMEN'S HUMAN RIGHTS TREATY XV. WOMEN'S RIGHTS AS HUMAN RIGHTS XVI. CONCLUSIONS 9 The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights? I. INTRODUCTION II. AFFIRMATION: DISABILITY RIGHTS "AS HUMAN RIGHTS" Ill. REFORMULATION: DISABILITY RIGHTS AS HUMAN RIGHTS "WITH A DIFFERENCE" IV. EXTENSION: DISABILITY RIGHTS AS HUMAN RIGHTS "PLUS" V. INNOVATION: DISABILITY RIGHTS AS (HUMAN) RIGHTS INHERENT TO PERSONS WITH DISABILITIES VI. CONCLUSION 10 Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles I. Introduction 2. Review of Law and Jurisprudence A. Non Discrimination B. Protection of Privacy Rights C. The Ensuring of Other General Human Rights Protection to All, Regardless of Sexual Orientation of Gender Identity 3. Impact of the Law and Jurisprudence for the Protection of the Human Rights of People of Diverse Sexual Orientations and Gender Identities 4. The Yogyakarta Process 5. Assessment of Dissemination and Impact of the Principles A. Reaction by States and other Actors within United Nations Fora B. Other Responses by States to the Principles C. Civil Society Responses 6. Conclusion PART III: INTERPRETING AND APPLYING THE LAW 11 Prohibited Discrimination in International Human Rights Law I. EQUALITY AND NON-DISCRIMINATION IN THE UN CHARTER AND CHARTER BODIES II. GLOBAL AND REGIONAL HUMAN RIGHTS TREATIES III. THE MEANING AND SCOPE OF PROHIBITED DISCRIMINATION A. Distinctions, Exclusions, Restrictions or Preferences B. With the Purpose or Effect of Nullifying or Impairing Guaranteed Rights C. Based on Identification with a Specific Group D. Arbitrary, Unreasonable, Disproportionate or Unjustified IV. THE MEANING OF DISCRIMINATION 12 The CEDAW Committee and Violence against Women 1. Introduction: the Women's Convention 2. General Recommendation No. 19 3. Implementation of General Recommendation No. 19 4. Mainstreaming Violence against Women Notes 13 Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies A. INTRODUCTION B. THE U.N. HUMAN RIGHTS TREATY BODIES C. FEMINIST CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW AND THE EQUALITY GUARANTEES D. EQUALITY AND NON-DISCRIMINATION ON THE BASIS OF SEX IN INTERNATIONAL LAW 1. U.N. Charter and the Universal Declaration of Human Rights 2. International human rights instruments 3. International jurisprudence (a) Formal versus substantive equality (b) Discrimination versus inequality (c) Public and private discrimination (d) Culture, custom and structural inequality (e) Multiple discrimination 4. Equality law and the U.N. treaty bodies: interim findings E. VIOLENCE AGAINST WOMEN AS SEX DISCRIMINATION 1. Violence against women = sex discrimination 2. Assessing the VA W=SD formula (a) Benefits of the VA W=SD formula (b) Concerns relating to the VA W=SD formula F. CONCLUSION 14 A Critical Evaluation of International Human Rights Approaches to Racism I. INTRODUCTION II. THE SIGNIFICANCE OF THE LANGUAGE OF EQUALITY IN THE UNITED NATIONS CHARTER III. THE CENTRALITY OF RACIAL DISCRIMINATION IN THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW (i) Racial Segregation in the United States (ii) South Africa and Apartheid (iii) The Pioneering Studies of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (iv) Standard Setting and Racial Discrimination IV. THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (i) The Definition of Racial Discrimination (ii) The Scope of the Convention's Substantive Provisions (a) Justified Distinctions: The Case of Non-nationals (b) Equality in Fact: Special Measures and Affirmative Action Under the Convention {c) Public and Private Reach of the Convention (d) Governmental Interference in Private Conduct: Hate Speech (e) Remedies for Victims of Racial Discrimination (f) The Need to Address the Root Causes of Racism-Article 7 (iii) The Committee on the Elimination of Racial Discrimination (a) Membership of the Committee (b) Committee Procedures (c) Overdue Reports (d) General Recommendations (e) Complaint Procedures (f) Early Warning and Urgent Procedures (g) Funding V. THE SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA, AND RELATED INTOLERANCE (i) Anti-Semitism and Islamophobia (ii) Assessment (a) Annual Reports (b) Country Missions (c) Cooperation with CERD and Other Bodies VI. THE UN PROGRAMME OF DECADES AND WORLD CONFERENCES TO COMBAT RACISM AND RACIAL DISCRIMINATION VII. CONCLUSIONS 15 The European Court of Justice and Anti-Discrimination Law: Some Reflections on the Experience of Gender Equality Jurisprudence for the Future Interpretation of the Racial Equality Directive 1. INTRODUCTION 2. THE GENERAL RELEVANCE OF THE EU GENDER 'EXPERIENCE' 3. 'RACIAL OR ETHNIC ORIGIN' 4. SCOPE 5. CONCEPTS OF DISCRIMINATION 5.1 Direct Discrimination 5.2 Indirect Discrimination 5.2.1 Disadvantageous impact 5.2.2 Objective justification 5.3 Harassment 6. EXCEPTIONS TO THE PRINCIPLE OF EQUALITY 6. 1 Genuine Occupational Qualifications 6.2 Positive Action 7. VICTIMISATION 8. ENFORCEMENT 9. CONCLUDING COMMENTS: EMERGING FROM THE PAST INFLUENCE OF GENDER EQUALITY PART IV: NON-LEGAL MEASURES FOR ACHIEVING EQUALITY AND NON-DISCRIMINATION 16 Article 10 A. Introduction I. Education as a Human Right: International and Regional Perspectives B. Travaux Preparatoires I. Article IO(a) II. Article IO(b) III. Article IO(c) IV. Article IO(f) V. Article IO(g) VI. Article IO(h) C. Issues oflnterpretation I. Taking All Appropriate Measures II. Equality D. Equality in Context I. Formal Equality II. Moving Beyond Formal Equality III. Substantive Equality IV. Transformative Equality V. Direct Discrimination VI. Indirect Discrimination VII. Temporary Special Measures (TSMs) VIII. lntersectional Discrimination E. States Parties' Obligations I. The Nature of State Obligations II. Implementation III. Reservations I. Article IO(a) II. Article IO(b) 17 The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination 18 Using Culture to Achieve Equality 1. INTRODUCTION 2. CONTENT AND MEANING OF ARTICLE 5: INTRODUCTION 3. IMPLEMENTATION ON THE DOMESTIC LEVEL 3.1. APPROPRIATE MEASURES ACCORDING TO CEDAW 3.2. SOME COMMENTS ON CEDAW'S CONCLUDING OBSERVATIONS 4. THE TWO FACES OF CULTURE42 4.1. CULTURE AS A BARRIER 4.2. CULTURE AS AN INSTRUMENT OF CHANGE 4.3. RELEVANT ACTORS 5. CONCLUSION Name Index Présentation de l'éditeur : "The principles of equality and non-discrimination lie at the heart of international human rights law. They are the only human rights explicitly included in the UN Charter and they appear at the beginning of virtually every major human rights instrument. This volume contains selected works by leading authors on the subject of equality and non-discrimination under international law. The selections are grouped into four sections. The first presents essays that explore theoretical concepts of equality and non-discrimination. The next addresses the development of international legal standards on the subject. The third presents articles analyzing how those standards have been interpreted and applied by UN and regional human rights bodies, and the last contains works on what measures besides legal action States are to take to in order to achieve equality and non-discrimination."